Free Speech Food Fights on the Rise

Coca-Cola and other big food and beverage companies are increasingly raising their free speech rights to challenge what regulators and consumers tell them they must, or can’t, say about their products.

The industry’s greater invocation of the First Amendment can be seen in challenges to regulation and litigation over sugar-sweetened food and drinks.

Manufacturers and the trade group that represents U.S. makers of non-alcoholic beverages say the science is unsettled. Warning directives and false advertising suits abridge their right to contribute to a public debate about sugar and health, they argue.

It’s too soon to declare winners and losers, but more battles lie ahead.

“Wherever the courts ultimately come down, I expect this to be a major area of contention in the years to come,” attorney Jonah Knobler, who defends companies in false advertising suits, told Bloomberg Law.

Maia Kats, litigation director for the Center for Science in the Public Interest in Washington, agrees. Kats’s group, which works on nutrition and other public health issues, represents plaintiffs in a suit that is the target of one of the industry’s free speech challenges.

“I think it’s a dangerous front,” Kats said, adding, “I think we will continue to see it until some of these cases go all the way up to the Supreme Court.”

Litigation As Speech Restriction

CSPI represents two African-American pastors suing the Coca-Cola Co. and the American Beverage Association. Coke and the trade association deceptively market sugar-sweetened beverages, misrepresenting their serious health risks, the pastors say.

But the company and the ABA counter that the pastors’ suit is an attempt to stifle their contributions to a health debate about obesity, diabetes, and heart disease.

Coke and the trade group want a quick dismissal of some claims under the District of Columbia anti-SLAPP law, which is meant to assist those who get sued after speaking out about matters of public concern.

Similarly, Post Foods LLC and General Mills Inc. have raised the First Amendment in suits alleging they deceptively market high-sugar cereals by including statements suggesting the products are healthy food choices.

A finding of liability in these suits would abridge their constitutional rights, the companies say.

The challenged statements about the healthfulness of its cereals are not misleading in all circumstances but are at most “potentially misleading,” General Mills said in a recent filing supporting its dismissal motion.

The health effects of added sugar are a matter of ongoing scientific and public debate, the cereal maker argued in the motion before Judge Jeffrey S. White of the U.S. District Court for the Northern District of California.

Plaintiffs cannot satisfy the test that applies to “potentially misleading” speech because they seek to impose restrictions that do not directly advance the asserted governmental interest and which are more extensive than necessary, General Mills said.

It remains to be seen how that argument will play out in the case. A hearing is set for May 25.

But in March, another judge in the Northern District of California rejected a similar challenge made by Post, which had sought an early exit from a suit over its cereal marketing.

The company’s argument, also based on the contention that there is a dispute about the health effects of sugar, would have required the plaintiffs to prove that the allegedly misleading speech was false beyond a reasonable debate, Judge William H. Orrick said.

But to survive dismissal, plaintiffs simply needed to plead that some significant evidence supported their theory that overconsumption of cereals with excessive added sugar was unhealthy. They did that, Orrick said.

Regulation As Compelled Speech

Food and beverage makers are also using the First Amendment to challenge regulations they say unconstitutionally compel them to make certain statements about the sugar in their products.

The American Beverage Association initially saw success in contesting a 2015 San Francisco ordinance that required drink advertisements to say “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.”

A panel of judges on the U.S. Court of Appeals for the Ninth Circuit blocked the soda warning law in September 2017. The panel found the accuracy of the warning was in reasonable dispute and, as a result, the message didn’t pass constitutional muster because it was not purely factual and uncontroversial. The federal judges also deemed the regulation unduly burdensome.

The full Ninth Circuit later agreed to hear the case, however, meaning the issue will get another look.

The court has since stayed the matter, pending the U.S. Supreme Court’s decision in a case involving a California law requiring pregnancy-counseling clinics that oppose abortion to provide patients with information about the procedure.

A Favorable Climate Up High

Defense attorney Knobler says constitutional arguments in food litigation are an outgrowth of decisions by the Supreme Court and other federal courts recognizing increased speech rights for corporations.

For many years, commercial speech received limited protection under the Constitution, Knobler, of Patterson Belknap Webb & Tyler LLP in New York, told Bloomberg Law.

“Everyone took for granted that the government had a very wide berth to regulate commercial speech, or authorize tort suits penalizing commercial speech, provided it claimed to be preventing consumer deception,” Knobler said.

In that legal environment, defendants in false-advertising suits generally didn’t even consider raising a First Amendment defense, said Knobler.

“The Roberts Court, however, has progressively elevated the constitutional status of corporate and commercial speech,” he said, referring to the Supreme Court under John G. Roberts Jr., who became chief justice in 2005.

Both Knobler and Kats, of the CSPI, point to Citizens United v. FEC as a turning point. There, the top court held that corporate speakers have the same rights as non-corporate speakers.

“This shift has only just begun to make its way into food-labeling litigation,” Knobler said.

Other Free Speech Challenges

Food and beverage, and other consumer product, companies have asserted their free speech rights in a number of other recent challenges to regulation and litigation. Among them:

• Chocolate and seafood companies are currently arguing the First Amendment warrants dismissal of suits alleging their labels fail to disclose the use of forced labor in the production of their products.

• Monsanto and farming groups in February got a Proposition 65 glyphosate warning temporarily blocked by the U.S. District Court for the Eastern District of California using a free speech challenge. There is “evidence in the record that glyphosate is not in fact known to cause cancer,” so “the required warning is factually inaccurate and controversial,” the court said.

• ExxonMobil in March lost its bid to derail an investigation by two attorneys general regarding whether it misled investors and the public about climate change. The company unsuccessfully argued the probe was an unconstitutional retaliation for its views on climate change.